Appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 by Stephen G Dalton & Son LTD against The Scottish Ministers and another (Court of Session)

Factual and Procedural Background

In November 2023 the Appellant applied to the Interested Party (the local planning authority) for planning permission to redevelop a site at [Number] Main Street in The City. The site had long been used as a scrap metal recycling and processing yard and lay in an area that had become predominantly residential. The amended proposal involved demolition of an industrial shed and construction of a six-storey mixed-use development comprising build-to-rent (BtR) residential units, purpose-built student accommodation (PBSA), a separate affordable housing block and ground-floor commercial/retail space.

The Interested Party refused permission on the basis that the proposal was contrary to the local development plan (LDP), principally because PBSA was not treated as housing for the purposes of the plan and the scheme delivered less than the allocated number of homes. The Appellant appealed to the Respondent, which appointed a reporter who dismissed the appeal. The Appellant then appealed to this court under section 239 of the Town and Country Planning (Scotland) Act 1997.

Legal Issues Presented

1. Whether, for the purposes of the local development plan (City Plan 2030), purpose-built student accommodation (PBSA) falls within the meaning of "housing" such that PBSA on an allocated housing site can satisfy the site's housing allocation.
2. Whether the reporter erred in law by misclassifying PBSA as Class 8 under the Town and Country Planning (Use Classes) (Scotland) Order 1997 and whether that error materially affected his decision.
3. Whether the reporter was entitled to conclude that the appellant had not justified a sub-50/50 split between student accommodation and housing where Policy Econ 2 and accompanying text required, where appropriate, a 50% housing provision on larger commercial sites.

Arguments of the Parties

Appellant's Arguments

• The reporter wrongly interpreted the development plan: "housing" in Policy Hou 1 includes PBSA and therefore the proposal should be capable of satisfying the housing allocation.
• NPF4 Policy 16(c) lists "homes for people undertaking further and higher education" and the plan's Local Housing Land Requirement is all‑tenure; PBSA falls within that envelope.
• The reporter's classification of PBSA as Class 8 was an error of law/fact that infected his reasoning and denied procedural fairness; other reporter decisions (PPA-230-2557 and PPA-230-2558) supported the Appellant's interpretation.
• The Appellant had provided justification for the proposed circa 60:40 split (PBSA:housing) based on amenity improvements and viability, which the reporter failed properly to address.

Respondent's Arguments

• The LDP clearly distinguishes between mainstream housing and PBSA; Policy Hou 1 allocates specific sites for housing while Policy Hou 5 makes distinct provision for PBSA.
• Policy 16 of NPF4 does not rank types of homes and does not negate the LDP's distinct treatment; where conflict exists the later LDP prevails under section 24(3) of the 1997 Act.
• The reporter's misclassification of PBSA as Class 8 was inconsequential to his core analysis, which depended on LDP policy application and the allocation for site H35.
• The Appellant's prior alternative arguments (that H35 formed part of a wider allocation EW1c) were withdrawn and the Pitt Street decisions were distinguishable on the facts.

Interested Party's Arguments

• City Plan 2030 was prepared to prioritise delivery of mainstream and affordable housing; PBSA is treated as a commercial use and often built at the expense of creating sustainable communities.
• The LDP and its evidence base (housing audits and delivery programme) treat PBSA separately and exclude PBSA from the housing land supply; the Appellant's interpretation would undermine the LDP's objectives, including the 35% affordable housing requirement.
• The reporter properly concluded the proposal would occupy the entirety of allocation H35 but deliver only 46 BtR dwellings (16 affordable) and no required Class 4 business space, leaving a shortfall of 67 homes against the 113-unit allocation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began from the legal principle that interpretation of development plan policies is a matter of law for the court, to be done objectively and in context (Tesco Stores cited). It analysed NPF4 and City Plan 2030 together, noting section 24(3) of the 1997 Act gives precedence to the later plan where incompatibility arises. The court accepted the reporter's core approach:

• City Plan 2030 was prepared to meet Edinburgh's housing needs and distinguishes between "housing" and PBSA in multiple provisions (Policy Hou 1, Hou 2, Hou 5, paras 2.88, 3.166–3.196, Policy Econ 2 and accompanying text).
• NPF4 Policy 16(c) lists examples of types of homes that may be supported, but does not prioritise or override the detailed treatment in the LDP; PBSA can draw support from NPF4 but the LDP's specific allocations and distinctions remain decisive where material.
• The appeal site is allocated in the LDP as H35 for 113 homes and for specified development principles in Appendix D; the Appellant's proposal would occupy the whole allocation but provide only 46 BtR dwellings (including 16 affordable) and 230 PBSA beds, failing to meet the 113‑unit expectation and omitting required Class 4 business space.
• The reporter had erred in classifying PBSA as Class 8, but that error was an inconsequential aside because his reasoning turned on application of the LDP's policies and allocations rather than use‑class categorisation.
• On the required 50/50 mix in Policy Econ 2 (for commercial uses on sites ≥0.25 Ha), the reporter was entitled to conclude the Appellant had not justified departing from a balanced mix; the Appellant's amenity and viability arguments did not show why a compliant mix was not compatible or appropriate, and that conclusion involved planning judgment the court would not disturb.

Holding and Implications

APPEAL REFUSED

Direct effect: the court upheld the reporter's decision refusing planning permission; the Appellant's challenge to the reporter's interpretation of the development plan and its other grounds failed. The court treated the reporter's misclassification of PBSA as an inconsequential error and did not set aside the reporter's substantive analysis. No new legal precedent was created; the decision applies existing principles of plan interpretation and acknowledges the fact‑sensitive nature of comparisons with other reporters' decisions.